Open main menu

Page:Harvard Law Review Volume 2.djvu/77

This page needs to be proofread.


THE HISTORY OF ASSUMPSIT 59

Court in a similar case were of opinion that an action lay if the party either before or after the services rendered promised to pay for them, "but not without a special promise.'*^ In Nichols v. More 2 (1661) a common carrier resisted an action for negligence, because, no price for the carriage being agreed upon, he was without remedy against the bailor. The Court, however, answered that

  • • the carrier may declare upon a quantum meruit like a tailor, and

therefore shall be charged."^ As late as 1697, Powell, J., speak- ing of the sale of goods for so much as they were worth, thought it worth while to add : " And note the very taking up of the goods implies such a contract."*

The right of one, who signed a bond as surety for another with- out insisting upon a counter bond or express promise to save harmless, to charge his principal upon an implied contract of in- demnity, was developed nearly a century later. In Bosden v, Thinne^ (1603) the plaintiff at the defendant's request had exe- cuted a bond as surety for one F, and had been cast in a judgment thereon. The judges all agreed that upon the first request only Assumpsit did not lie, Yelverton, J., adding: ** For a bare request does not imply any promise, as if I say to a merchant, I pray trust J. S. with £\QO, and he does so, this is of his own head, and he shall not charge me, unless I say I will see you paid, or the like." The absence of any remedy at law was conceded in 1662.^ It was said by Buller, J., in Toussaint v, Martinnant,^ "that the first case in which a surety, who had paid the creditor, succeeded in an action at law against the principal for indemnity, was before Gould, ).,• at Dorchester, which was decided on equitable grounds." The in- novation seems to be due, however, to Lord Mansfield, who ruled in favor of a surety in Decker v. Pope, in 1757, "observing that when a debtor desires another person to be bound with him or for him, and the surety is afterwards obliged to pay the debt, this is a sufficient consideration to raise a promise in law."^

The late development of the implied contract to pay quantum

1 Thursby v, Warren, W. Jones, 208.

2 I Sid. 36. See also Boson v, Sandford (1689), per Eyres, J.

  • The defendant's objection was similar to the one raised in Y. B. 3 H. VI. 36, pi. 33,

supra^ II, n. 2.

  • Hayward v. Davenport, Comb. 426. * Yelv. 40.
  • Scott V. Stephenson, i Lev. 71, i Sid. 89, s. c. But see Shepp. Act on Case (2 ed.) 49.

T 2 T. R. 100, 105. * Justice of the Common Pleas, 1763-1794. » I Sel. N. P. (13 ed.) 91.